Wilson v. Commissioner Social Security Administration, No. 3:2013cv01858 - Document 21 (D. Or. 2014)
Court Description: Opinion and Order. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal Opinion and Order. Signed on 10/28/2014 by Chief Judge Ann L. Aiken. (rh)
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Wilson v. Commissioner Social Security Administration Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KATRINA WILSON, Case No. 3:13-cv-01858-AA OPINION AND ORDER Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. MERRILL SCHNEIDER Schneider, Kerr & Gibney Law Offices P.O. Box 14490 Portland, Oregon 97293 Attorney for plaintiff S. AMANDA MARSHALL RONALD K. SILVER United States Attorney's Office 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97201 COURTNEY GARCIA Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 901 Seattle, Washington 98104 Attorneys for defendant Page 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: Katrina Wilson ("plaintiff") brings this action pursuant to the Social Security Act final decision of ("Commissioner") . ("Act") the The to obtain judicial review of a Commissioner of Commissioner Social denied Security plaintiff's applications for Title II disability insurance benefits and Title XVI supplemental security income ("SSI") . ( "DIB") For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed. PROCEDURAL BACKGROUND On July 15, 159-72. Her held plaintiff before was plaintiff applied for applications reconsideration. was 2010, Tr. an were 99-107, initially 111-16. On May 24, Administrative represented by denied Law counsel DIB and SSI. Judge and 2012, and upon a hearing ( "ALJ") , testified, Tr. wherein as did a vocational expert. Tr. 31-60. On June 28, 2012, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 19-26. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 9-13. STATEMENT OF FACTS Born November 19, 1958, plaintiff was 51 years old on the alleged onset date and 53 years old on the date of the hearing. Tr. 15 9, 166. She graduated high school and attended Clackamas Community College for a short time before quitting in 1981. Tr. Page 2 - OPINION AND ORDER 35. Plaintiff worked representative, previously machine as operator, customer a photo and service production specialist. Tr. 197-204. Plaintiff alleges disability as of April 26, 2010, due to deteriorating hip joints, asthma, back problems, arthritis, and diabetes. Tr. 47-48, 191. STANDARD OF REVIEW The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 4 98, 501 (9th Cir. mere scintilla. mind might 198 9) . Bowen, 879 F.2d Substantial evidence is "more than a It means such relevant evidence as a reasonable accept Richardson v. Hammock v. as Perales, internal quotations evidence that adequate 402 U.S. omitted). supports and conclusions." Martinez v. to 389, The 401 court detracts Heckler, support a conclusion." (1971) must from the (citation and weigh "both the [Commissioner's] 807 F.2d 771, 772 (9th Cir. 1986) . Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. claimant to Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The initial burden of proof rests upon the establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability reason of to engage any in any medically Page 3 - OPINION AND ORDER substantial determinable gainful physical activity or by mental impairment which can be expected . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d) (1) (A). The process Commissioner has established a five-step sequential for determining whether a person is disabled. Yuckert, 416.920. 482 U.S. First, 137, 140 (1987); 20 C.F.R. §§ Bowen v. 404.1502, the Commissioner considers whether a claimant is engaged in "substantial gainful activity." Yuckert, 4 8 2 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled. At step two, the Commissioner evaluates whether the claimant has "medically a impairments." 404.1520 (c), severe Yuckert, impairment u.s. 482 416.920 (c). or combination 140-41; at 20 C.F.R. If the claimant does not have a of §§ severe impairment, she is not disabled. At step three, the claimant's impairments, equal "one of [Commissioner] a of acknowledges gainful C.F.R. determines whether the either singly or in combination, meet or number substantial 404.1520(c), §§ Commissioner are listed so impairments severe activity." Yuckert, 416.920(c). If 482 so, as U.S. the to at that the preclude 140-41; 20 claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), Page 4 - OPINION AND ORDER 416.920(f). If the claimant can perform her past work, she is not disabled; if a claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant Yuckert, u.s. 482 416.920 (g). numbers at in the national 141-42; 20 and C.F.R. local 404.1520 (g)' §§ If the Commissioner meets this burden, is not disabled. 20 C.F.R. §§ economy. the claimant 404.1566, 416.966. THE ALJ'S FINDINGS At step one of the five-step sequential evaluation process outlined above, substantial April 26, the ALJ found that plaintiff had not engaged in gainful 2010. Tr. activity 21. At since the step two, alleged found that and diabetes mellitus. plaintiff's Id. impairments, date of the ALJ determined that plaintiff had the following severe impairments: replacement onset At status post hip step three, either singly the ALJ or in combination, did not meet or equal the requirements of a listed impairment. Tr. 22. Because she did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity ("RFC") to perform less than the full range of sedentary work: [s]he can lift ten pounds occasionally and less than 10 pounds frequently; she can stand and walk up to two out Page 5 - OPINION AND ORDER of eight hours; she can occasionally stoop and bend, and she should not climb, balance, kneel, crouch, or crawl. At step four, the ALJ found that plaintiff could perform her past relevant work as a customer service representative. Tr. 26. Accordingly, the ALJ concluded that plaintiff was not disabled under the Act. Id. DISCUSSION Plaintiff contends the ALJ erred opinion of Jeffrey Young, D.O.; and (2) by: (1) rejecting the finding that she did not meet or medically equal listing 1.03 at step three. I. Medical Opinion Evidence Plaintiff contends the ALJ failed to provide a legally sufficient reason, supported by substantial evidence, opinion of Dr. in social Young. security There are three types of medical opinions cases: non-examining doctors. for discrediting the those Lester v. from treating, Chater, examining, 81 F.3d 821, 830 and (9th Cir. 1995). To reject the uncontroverted opinion of a treating or examining doctor, the reasons for doing so. (9th Cir. 2005) ALJ must Bayliss v. present Barnhart, (citation omitted). clear 427 and convincing F.3d 1211, 1216 If a treating or examining doctor's opinion is contradicted by another doctor's opinion, it may be rejected for specific and legitimate reasons supported by substantial evidence in the record. Id. Page 6 - OPINION AND ORDER In 2004, plaintiff initiated care with Dr. Young; he treated her approximately once per month for asthma, diabetes, and back pain associated with her hip impairments. In May 2 012, Dr. Young plaintiff's attorney. box form, leg, Dr. completed Tr. a 4 60-62. and leg Tr. questionnaire 250-308. prepared by In this three-page check-the- Young indicated that plaintiff suffers from back, and hip pain, and would need to alternate between sitting, standing, and lying down approximately every 30 minutes. Tr. 460. He also opined that plaintiff's symptoms would likely increase in a competitive work environment; she would be expected to miss two full work days per month due to "flares of pain." Id. to plaintiff's alleged peripheral neuropathy, Dr. In regard Young noted that "specific treatment has not been tried" and he was "unsure" whether this condition existed. Tr. 461. Finally, Dr. Young that plaintiff did not need a hand-held assistive device to ambulate effectively. Id. The ALJ gave "limited weight" to Dr. Young's opinion for two reasons. First, plaintiff because would her the ALJ rejected need to alternate testimony did sitting for extended periods. not Tr. Dr. Young's positions indicate 24. limitation every any Second, 30 that minutes difficulty with the ALJ found Dr. Young's opinion that plaintiff would need to miss work two days per month inconsistent with the medical records, which reflected that plaintiff's hip pain improved since surgery. Page 7 - OPINION AND ORDER Id. An ALJ may discount a medical report that is inconsistent with the other evidence of the record, including the doctor's own chart notes or the claimant's testimony. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). An independent review of Dr. Young's brief and conclusory opinion confirms that his assessed limitations are contravened by plaintiff's testimony and the other evidence of record. First, as the ALJ observed, there is an absence of evidence indicating that plaintiff is unable to sit for a significant amount of time or must frequently household change chores, positions. drive to Notably, appointments, she dance can to perform music for exercise, watch movies, play video games, and do embroidery. 1 Tr. 24, 40-41, activities Moreover, 45, 213-20. evince plaintiff the The ALJ reasonably resolved that these ability sedentary work. that could testified to at engage the in hearing she return to her previous job if given sufficient restroom breaks. Tr. 47, 54. Plaintiff did not indicate any difficulty performing the sitting, standing, and walking requirements for her past relevant work as a customer service representative. Plaintiff's treatment records also demonstrate significant improvement since her October 26, 2010, surgery. Two weeks post- 1 Significantly, the ALJ relied on plaintiff's activities of daily living to reject her subjective symptom testimony and plaintiff does not challenge this finding on appeal. Tr. 23; see generally Pl.'s Opening Br.; Pl.'s Reply Br. Page 8 - OPINION AND ORDER surgery, plaintiff needed crutches to walk, whereas Dr. Young noted, as of September 2011, that she could ambulate effectively without an assisti ve device. post-operative report Tr. reveals 4 58, that 4 61. she Plaintiff's ten-week recovered well, increased strength and range of motion. Tr. 3 8 4. As reported being "very happy with her left hip.". Id. showing such, Dr. she Young's opinion that plaintiff's pain would interfere with her ability to attend work consistently is further undermined by her daily activities and her admission at the hearing that she was capable of performing the physical requirements of her past relevant work. Tr. 46-47, 54, 205-20. In supported sum, by the ALJ provided substantial Young's evaluation. legally evidence, to sufficient disregard The ALJ's assessment of Dr. reasons, some of Dr. Young's opinion is affirmed. II. Step Three Finding Plaintiff also argues that the ALJ erred by failing to find that she met or equaled listing 1. 03. To establish a listed impairment at step three, the claimant must demonstrate that "all of the specified medical criteria [are met]." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). "An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. Listing 1. 03 "[r]econstructive requires surgery Page 9 - OPINION AND ORDER or that surgical a claimant arthrodesis of undergo a major weight-bearing joint, with inability [the] effectively, as defined in 1. 00 (B) (2) (b), of onset." 20 C.F.R. § to ambulate . within 12 months 404, Subpt. P, App. 1 § 1.03. To establish ineffective ambulation, the claimant must demonstrate: an extreme limitation of the ability to walk; i.e., an impairment ( s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00(J)) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. 20 C.F.R. words, § 404, Subpt. P, App. nto ambulate effectively, 1 l.OO(B) (2) (b). § In other individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living [and] have the ability to travel without companion assistance to and from a place of employment or school." Id. At step three, the ALJ expressly considered listing 1.03 but found that plaintiff did not meet or equal it because ntreatment records do not effectively on reflect a that [plaintiff] sustained basis [or is that unable she] to was ambulate unable to return to effective ambulation within twelve months of onset." Tr. 22. Here, the record supports the ALJ' s conclusion. Plaintiff testified at the hearing that she can navigate her apartment and other nshort distances" without use of an assistive device; Page 10 - OPINION AND ORDER for longer distances, feel as above, did she "take [ s] "stable or [her] cane" because she does not comfortable without plaintiff's treating doctor, not need hand-held a effectively. Tr. independently carries 461. Dr. her Tr. Young, assistive Also out it." activities As noted opined that she device noted as 4 6. ambulate to above, of plaintiff daily living. Specifically, she can shop, drive, and perform limited household chores, such as cooking and cleaning. Roybal v. (affirming Colvin, the 2013 WL 4768033, ALJ' s step three *9 Tr. 205-11, (C.D.Cal. finding where 214; Sept. the see also 4, 2013) claimant's activities of daily living demonstrated the ability to ambulate effectively and the claimant's medical providers did not indicate that an assisti ve device was warranted) . The ALJ' s step three finding is affirmed. CONCLUSION The Commissioner's decision is AFFIRMED and this DISMISSED. IT IS SO ORDERED Dated this 1/? ofa: 2?2Lv Ann Aiken United States District Judge Page 11 - OPINION AND ORDER case is
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